Citation Nr: 9820671
Decision Date: 07/07/98 Archive Date: 06/29/01
DOCKET NO. 97-30 537 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an effective date earlier than June 3, 1995,
for the award of an increased evaluation to 10 percent for
chronic cervical muscle strain with headaches.
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The veteran had active service from June 1988 to February
1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1996 rating decision issued by
the Atlanta, Georgia, Department of Veterans Affairs (VA)
Regional Office (RO) which granted an increased evaluation
from zero to 10 percent for the veteran's service-connected
chronic cervical muscle strain with headaches with an
assigned effective date of June 3, 1995, which was considered
to be the date of the veteran's claim for an increase. The
case is now ready for appellate review.
The veteran's May 1997 statement was taken by the RO as a
notice of disagreement with the assigned effective date for
an increased evaluation for the veterans' service-connected
neck disability. In reading this statement, it is possible
that the veteran may have intended to claim that the original
rating action on file from May 1990 contained clear and
unmistakable error with respect to the assigned evaluation
for his neck disability.
Clear and unmistakable error (CUE) is a very specific and
rare kind of "error." It is the kind of error, of fact or of
law, that when called to the attention of later reviewers
compels the conclusion, to which reasonable minds could not
differ, that the result would have been manifestly different
but for the error. Simply to claim CUE on the basis that
previous adjudications had improperly weighed and/or
evaluated the evidence can never rise to the stringent
definition of CUE. Similarly, neither can broad-brushed
allegations of "failure to follow the regulations" or
"failure to give due process," or any other general,
nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40,
43-44 (1993). The veteran has not reasonably raised a claim
of CUE inasmuch as he has not provided any "specificity as
to what the alleged error is." Fugo, 6 Vet. App. at 43.
Accordingly, there is no requirement that the Board address
the matter of CUE.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he is entitled to an award of VA
compensation for his service-connected neck disorder from the
date of his original claim. He contends that his subjective
symptoms giving rise to the currently assigned 10 percent
evaluation have been present at all times since he was
separated from service.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), after review and consideration of all evidence and
material of record in the veteran's claims folder, and for
the following reasons and bases, the Board decides that the
veteran's claim for entitlement to an effective date earlier
than June 3, 1995, for a 10 percent evaluation for his
cervical spine disability must be denied as a mater of law
and regulation.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been requested or obtained.
2. Pursuant to the veteran's original February 1990 claim,
the RO granted service connection for chronic cervical muscle
strain with headaches with an assigned noncompensable
evaluation effective from the date of that initial claim; the
veteran was notified of this rating action in April 1990, he
did not perfect an appeal, and that rating action became
final.
3. The veteran next filed a claim seeking an increased
evaluation for his service-connected neck disability which
was received by the RO on June 3, 1996, although the RO
through apparent administrative error stamped a receipt date
of this document as June 3, 1995.
4. Despite the fact that the veteran's claim was not
received until June 3, 1996, the RO increased the disability
rating for the veteran's cervical spine disorder from
0 percent to 10 percent effective June 3, 1995.
CONCLUSION OF LAW
An effective date of June 3, 1995, for a 10 percent
evaluation for chronic cervical muscle strain with headaches
is the earliest effective date provided by pertinent VA law
and regulations. 38 U.S.C.A. §§ 5110, 7105 (West 1991);
38 C.F.R. §§ 3.160(d), 3.400(o), 4.20, 4.71a (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Law and Regulation. Pursuant to 38 U.S.C.A. § 7105(a)(c), a
notice of disagreement initiates appellate review. If no
notice of disagreement is filed, the action or determination
becomes final. In this case, because the veteran did not
file a notice of disagreement with the original May 1990
rating action denying a compensable evaluation for chronic
cervical muscle strain with headaches, that rating action
became final. 38 C.F.R. § 3.160(d).
Under the general rule, and except as otherwise provided, the
effective date of an evaluation and award of VA disability
compensation based on an original claim, a claim reopened
after final disallowance, or a claim for increase will be the
date of receipt of the claim or the date entitlement arose,
whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400
(emphasis added).
Specifically, the effective date for the assignment of an
increased evaluation for VA disability compensation will be
the date of receipt of the claim or the date entitlement
arose, whichever is later. 38 C.F.R. § 3.400(o)(1).
However, the effective date for the assignment of an
increased evaluation for VA disability compensation may be
the earliest date as of which it is factually ascertainable
that an increase in disability had occurred, if a formal
claim for such increase is received within one year from such
date, otherwise the effective date shall be the date of
receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R.
§ 3.400(o)(2).
When an unlisted condition is encountered, it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
38 C.F.R. § 4.20.
Limitation of cervical spine motion which is: slight,
warrants a 10 percent evaluation; moderate, warrants a 20
percent evaluation, and; severe, warrants a 30 percent
evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5290.
Lumbosacral strain which is severe with listing of the whole
spine to the opposite side, positive Goldthwait's sign,
marked limitation of forward bending in the standing
position, loss of lateral motion with osteoarthritic changes,
or narrowing or irregularity of joint space, or some of the
above with abnormal mobility on forced motion warrants a 40
percent evaluation. Strain with muscle spasm on extreme
forward bending, loss of lateral spine motion unilateral in
the standing position warrants a 20 percent evaluation.
Strain with characteristic pain on motion warrants a 10
percent evaluation. Strain with slight subjective symptoms
only warrants a noncompensable evaluation. 38 C.F.R.
§ 4.71a, Diagnostic Code 5295.
Facts. The veteran was separated from service as a result of
various disabilities. Among these was a finding that he had
chronic cervical muscle strain with associated headaches. A
Medical Evaluation Board (MEB) summary noted that the veteran
had chronic neck pain with associated headaches. A November
1989 CT scan of the head was normal. An examination of the
neck showed that it was supple without lymphadenopathy or
thyromegaly. A Neurologic examination was intact and there
were no focal neurologic signs. There were no findings or
evidence showing any significant pathology of the cervical
spine.
The veteran filed claims for service connection in February
1990, the month of service separation. In March 1990, the RO
issued a rating decision which considered the service medical
records and which granted service connection for chronic
cervical muscle strain with headaches as noted in the MEB
physical examination and which assigned a noncompensable
evaluation because loss of cervical spine motion was not
demonstrated. The veteran was notified of all aspects of
this rating action the following month in April 1990 and
given his appellate rights but he did not thereafter disagree
or perfect a timely appeal.
In a statement which was dated by the veteran on May 29,
1996, the veteran requested increased evaluations for his
service-connected disabilities. While an RO date stamp on
the face of this statement indicates that it was received on
June 3, 1996, a date stamp on the reverse of this form
indicates that it was received June 3, 1995.
The veteran was subsequently provided a series of VA
examinations and the RO also collected certain private
medical evidence. June 1996 VA X-ray studies were
interpreted as revealing a slightly narrowed disc space at
C2-C3 and a somewhat narrowed neural foramen at C3-C4. No
arthritis was noted. A June 1996 VA examination of the neck
recorded the veteran's complaints of pain but resulted in
findings of normal motion, no deformity, and no weakness and
the diagnosis was only neck pain and headache of unknown
etiology. A VA neurological examination of the same month
noted no cranial nerve abnormalities and no focal motor or
sensory deficits. While the veteran related that he had
chronic daily headaches which he felt were related to mild to
moderate neck pain, the examiner found that headaches were
tension in nature. There were no findings relating headaches
to the veteran's neck. During a June 1996 VA examination for
joints, the veteran complained of having bilateral knee joint
pain and denied any other joint pain.
Private medical records received in July 1996 reflect
treatment which the veteran received during April and May
1996. Records from St. Joseph's Hospital noted cervical
spine syndrome. Range of motion was not full but was not
significantly limited. An MRI of the cervical spine was
interpreted as revealing that bony alignment was
satisfactory, vertebral bodies were normal in height and
signal and there was no spinal stenosis. There was perhaps
minimal narrowing of C4-C5, C5-C6 and C6-C7 with no evidence
of any real disc prolapse and no evidence of thecal canal or
cord or nerve root compression at these levels. The
remaining disc levels were totally unremarkable. The cord
was intrinsically normal in its caliber. There were no
findings of degenerative changes or arthritis. A St.
Joseph's Outpatient Center treatment record noted the
veteran's complaint of chronic neck pain and headaches. This
record noted that an MRI had been performed two weeks
previously and stated that X-rays showed "slight DJD" of the
cervical spine.
Pursuant to the veteran's claim for an increased rating, the
RO issued a July 1996 rating decision which granted an
increased evaluation for the veteran's chronic cervical
muscle strain with headaches to 10 percent on the basis of
the veteran's complaints of pain effective from June 3, 1995.
Analysis. While the veteran contends that his service-
connected neck disability symptoms are the same at present as
they have been since he was separated from service, the
clinical evidence of record showed no demonstrable underlying
pathology at the time he was separated from service in
February 1990. At the time, the veteran was only noted to
have chronic neck pain with headaches but with no cervical
spine disability or pathology noted. Subsequent to the
veteran's request for an increased rating, however, clinical
evidence demonstrated slight narrowing of three discs and
although VA X-rays and a private MRI revealed no arthritis, a
private X-ray purportedly was interpreted to show slight
degenerative changes.
The veteran was notified that his service-connected chronic
cervical muscle strain with headaches was assigned a
noncompensable evaluation pursuant to the March 1990 original
rating in April 1990. He did not thereafter file a timely
notice of disagreement or timely perfect an appeal. In
accordance with the applicable laws and regulations, that
rating action became final. The veteran did not file a claim
for an increased evaluation until over six years later in
June 1996. The RO has erroneously referred to the date of
this application as June 1995.
The general rule is that the effective date for the
assignment of increased evaluations will be the date of
receipt of the claim or the date entitlement arose, whichever
is later. An exception to the general rule would allow the
effective date to be the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred if a claim is received within one year from such
date. As noted above, the veteran's claim for an increased
rating was received on June 3, 1996. The Board therefore
looks to all evidence recorded during the year prior to this
date for evidence supporting an increased evaluation.
However, in this case the RO has already granted the veteran
an increased rating of 10 percent effective one year prior to
the date of receipt of his claim.
Accordingly, the RO has already granted the veteran an
effective date for the increased rating which is the earliest
possible date in accordance with the applicable law and
regulation for the assignment of the veteran's increased
evaluation. No earlier effective date for the assignment of
a 10 percent evaluation for the veteran's chronic cervical
muscle strain with headaches is authorized by the applicable
laws and regulations as discussed in this opinion. In a case
where the law and not the evidence is dispositive, the claim
should be denied because of the absence of legal merit or the
lack of entitlement under law. Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).
ORDER
Entitlement to an effective date earlier than June 3, 1995,
for the assignment of a 10 percent evaluation for chronic
cervical muscle strain with headaches is denied.
Gary L. Gick
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.